Articles Posted in Workplace Retaliation

In Loeb v. Vantage Custom Classics, Inc., ESX-L-4762-20, the New Jersey Superior Court, Law Division, Essex County, was faced with the question of whether an employee who suffers an adverse employment action because of complaints he made to his employer about its failure to follow Governor Phil Murphy’s Executive Orders designed to mitigate the spread of the COVID-19 virus can sue as a whistleblower under the New Jersey Conscientious Employee Protection Act (CEPA). The Court answered this question in the affirmative.

On March 9, 2020, New Jersey Governor Phil Murphy issued Executive Order No. 103, declaring a State of Emergency and a Public Health Emergency because of the COVID-19 pandemic. On March 16, 2020, Governor Murphy issued Executive Order No. 104 implementing aggressive social distancing measures to mitigate further spread of COVID-19 in New Jersey. On March 21, 2020, Governor Murphy issued Executive Order No. 107 directing all residents employed in nonessential jobs to stay at home. Paragraph 10 of Executive Order 107 states that, “All businesses or non-profits in the State, whether closed or open to the public, must accommodate their workforce, wherever practicable, for telework or work-from-home arrangements.” And on April 8, 2020, Governor Murphy issued Executive Order No. 122 incorporating all relevant Executive Orders in relation to pandemic COVID-19, Declaring;

“All essential retail businesses, warehousing businesses, manufacturing businesses, and businesses performing essential construction projects must also adopt policies that include, at minimum, the following requirements:

Recognizing the unique vulnerability of hotel housekeeping and room service employees who often work alone while cleaning guests’ rooms, New Jersey Governor Phil Murphy signed into law this month a requirement that ensures hotels with over 100 guest rooms provide its employees with panic button devices to protect them when confronted with sexual assault and harassment situations. This new law was proposed in the aftermath of the sexual assault of a 51-year old room cleaner in Bally’s Hotel and Casino in 2018, which sparked outrage among similarly situated workers throughout the state who feared for their safety. In enacting this law, which will take effect in January 2020, New Jersey becomes the first state to require such protection for its employees.

The new law additionally recognizes that hotel employees who are often recent immigrants who speak little English and therefore may feel intimidated to report inappropriate or criminal conduct for fear of retaliation from their employers. The public policy goals of this legislation are in line with existing pro-employee rights laws in effect in our state such as the New Jersey Law Against Discrimination (LAD).

The LAD provides a significant level of protection to New Jersey workers by prohibiting employers from retaliating against employees for complaining about harassment or discrimination. N.J.S.A., 10:5-12(d). Under the LAD, it is an unlawful practice “for any person to take reprisals against any person because that person has opposed any practices or acts forbidden under this act.” Id. The panic button legislation adds an additional layer of protection for hotel service employees underscoring the fact that hotel employers had been failing to adequately address these workers’ safety concerns.

There is no doubting increased social media use around the world means people are more connected to each other today than ever before. All it takes is a quick Facebook search to locate a person’s whereabouts, activities, and interactions with colleagues, friends, and family. This expanded access to information has led many employers to monitor and regulate the words and conduct of their employees outside of work, and at times, to terminate a worker’s employment for what the employer views is unsavory, disparaging, or unflattering behaviors. Most recently, actress-comedienne Roseanne Barr lost her job and had her self-named TV series cancelled because she made a racially offensive tweet about Valerie Jarrett, a former senior aide to former President Obama. While this may be an extreme example, it begs the question, “To what extent can an employer terminate an employee for their behavior outside of the workplace, specifically, for their social media use?”  The answer is not entirely clear.

Generally, employees in New Jersey are considered at-will, meaning their employer can terminate a worker’s employment for any reason or no reason, including social media use, so long as the termination does not violate law. However, the National Labor Relations Board (“NLRB”) has determined that certain social media use is considered “protected concerted activity” and termination for that type of social media use to be a violation of federal law.[1] The NLRB is an independent federal agency created by Congress to protect employees’ rights to unionize, and also acts to prevent and remedy unfair labor practices committed by private sector employers and unions.

In Meyers II, 21 NLRB 882, 887 (1986), the NLRB defined concerted activity as, “individual employees that seek to initiate or to induce or to prepare for group action, as well as individual employees bringing truly group complaints to the attention of management.” In NLRB v. Karl Knauz Motors, Inc., 358 NLRB 1754, 1763 (2012), an Administrative Law Judge concluded that a BMW car salesperson was fired for posting pictures on Facebook related to an accident that took place at a sister dealership, rather than because of pictures posted by him to criticize the food and drink served at a luxury car event attended by that many other salespeople. The NLRB stated the photos of the accident were not protected activity and placed the dealership in a bad light, while the photos used to criticize the food at an event not hosted or sponsored by the employer were examples of protected concerted activities.

Mashel Law, L.L.C. recently filed a class action lawsuit in the United States District Court of New Jersey against Lyft, Inc. (Lyft) on behalf of current and former Lyft drivers who entered contracts with Lyft to receive a portion of the fare Lyft charges customers, that is, the fare charged the rider less Lyft’s applicable commission fee, and any applicable charges such as service fees, cancellation fees, damage fees, tolls, surcharges, and taxes, but who did not receive the contracted driver’s fee, and who opted out of arbitration. Lyft is a “ridesharing” business that originated in San Francisco, California in 2012, and whose chief competitor is Uber. Lyft operates in at least 33 other states in the United States.

Under this straightforward common law breach of contract action, the proposed class consists of all persons nationwide who entered contracts with Lyft to provide transportation services to customers (riders) of Lyft in exchange for a portion of the fare Lyft charges riders, to wit, the fare charged the rider (plus tips if applicable) less applicable charges such as service fees, cancellation fees, damage fees, tolls, surcharges, taxes, and who opted out of arbitration. The complaint also asserts common law claims of breach of the implied covenant of good faith and fair dealing, fraud, and unjust enrichment.

A class action lawsuit is appropriate when large numbers of similarly situated people have suffered same or similar injuries by the acts or omissions of a wrongdoer, typically a large corporation. Under the Federal Rules of Civil Procedure, a class may be certified if the requirements of Rule 23 are met, including: (1) numerosity; (2) commonality of law or fact; (3) typicality between the class claims and those of the named parties; and (4) adequacy of representation by the named parties and class counsel. Fed. R. Civ. P. 23(a).  “[T]he proposed class must also satisfy at least one of the three requirements listed in Rule 23(b).” Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541, 2548 (2011). A party seeking certification pursuant to Rule 23(b)(3), must show that “the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.” Fed. R. Civ. P. 23(b)(3).

A constructive discharge occurs when conditions at work become so unlawfully and intolerably hostile an employee is left with no choice but to resign. Previously, to recover under New Jersey’s Whistleblower Law – the Conscientious Employee Protection Act (CEPA) – a litigant was required to prove actual or constructive discharge. This changed when the New Jersey Supreme Court in Donelson v. DuPont Chambers Works expanded the scope of liability and broadened potential litigants’ avenues of recovery in holding that an employee who files suit under CEPA may recover back and front pay, even if the employee was not fired or constructively discharged.  This can be done if the employee shows he or she became mentally disabled because of the employer’s retaliation. Such retaliation typically takes the form of a hostile work environment.

In Donelson, Plaintiff, John Seddon, a thirty-year employee of DuPont Chambers Works, filed complaints with DuPont management and the Occupational Safety and Health Administration regarding unsafe conditions in the workplace. Seddon believed that after he engaged in whistleblowing activities, DuPont retaliated by placing him on an involuntary short-term disability leave. Following his return to work, DuPont required that Seddon work twelve-hour shifts in an isolated work assignment, a requirement that he characterized as “torture.” Consequently, Seddon sought psychiatric treatment and took a voluntary six-month leave of absence. After his six-month leave, Seddon retired with a disability pension from DuPont.

In his lawsuit, Seddon alleged that DuPont retaliated against him for complaining about workplace safety concerns, and as result of DuPont’s retaliatory actions, he suffered a mental breakdown rendering him unable to hold gainful employment. Following a trial, a jury rendered a verdict in favor of Seddon awarding him $724,000 for economic losses and $500,000 in punitive damages. However, on appeal the Appellate Division reversed, determining a lost wage claim under CEPA is not cognizable unless actual or constructive discharge was proved.

Your company is sponsoring a political fundraising luncheon for Donald Trump during work hours and makes clear your attendance is expected.  Must you attend?  How about if your boss insists that all members of the IT team he heads, and to which you are a member, must attend and participate in a prayer breakfast meeting where the pastor from his church will be speaking.  If you refuse to go, are you protected your boss suffer retaliate against you later?  The answer to these questions are found in the New Jersey Worker Freedom from Employer Intimidation Act (“the Act”).

The Act, which was signed into law in 2006, forbids employers from requiring employees to attend any employer-sponsored meetings or participate in any communications with an employer and the employer’s agents or representatives where the purpose of the get-together is to hear about the employer’s opinion(s) about religious or political matters. The Act specifically prohibits an employer and its agents and representatives from discharging, disciplining or otherwise penalizing any employee because the employee in good faith reports a violation or suspected violation of the Act.

Any employee who suffers retaliation in violation of the Act may bring a private civil action against the offending employer and its cohorts. The remedies under the Act include:

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